Public Corruption & Honest Services Fraud

Each Congress bills are introduced to address to create new and expanding existing public corruption laws. These bills often include provisions that would reverse decisions by the U.S. Supreme Court narrowing the scope and reach of existing statutes such as the mail and wire fraud statutes (18 U.S.C. §§ 1341 and 1343), the honest services fraud statute (18 U.S.C. § 1346), and the bribery and illegal gratuities statute (18 U.S.C. § 201). In addition, these bills frequently include provisions extending the statute of limitations, expanding venue, and increasing sentences for public corruption offenses, as well as making certain conduct a predicate for RICO charges.

In recent years especially, multiple members of Congress have focused on expanding the honest services fraud statute in response to the U.S. Supreme Court's decision in Skilling v. U.S. As detailed below, these attempts have been unsuccessful thanks in large part to the work of NACDL and its allies. NACDL has testified before Congress on these flawed pieces of legislation and continues working to prevent the passage of legislation attempting to expand or create honest services fraud and public corruption offenses.

Related Legislation

Clean Up Government Act

The Clean Up Government Act of 2011 would make myriad changes to Title 18 of the U.S. Code to expand the scope of a number of federal criminal laws targeting fraud, theft, bribery, embezzlement, racketeering, and other forms of so-called public corruption. The bills would also increase the criminal penalties for certain public corruption offenses, expand the federal venue provisions for a wide range of federal offenses (including perjury and obstruction of justice), and broaden the applicability of the federal wiretap authorization statute. Originally introduced as H.R. 1793, Rep. Sensenbrenner re-introduced the legislation, with some minor changes, as H.R. 2572. This bill has been introduced in prior years, including in the 110th Congress as the Clean Up Government Act of 2007 (H.R. 2438).

Senate Public Corruption Amendment 1483 to the STOCK Act

Offered during the 112th Congress, Senate Public Corruption Amendment 1483 to the STOCK Act was substantially similar to H.R. 2572 as originally introduced.

Public Corruption Prosecution Improvements Act

S. 401, the Public Corruption Prosecution Improvements Act of 2011 and the Public Officials Accountability Act

The Public Corruption Prosecution Improvements Act of 2011 seeks to implement a massive number of changes to various federal criminal statutes aimed at prosecuting public officials. During the Senate Judiciary Committee markup of S. 401, the text of S. 995, the Public Officials Accountability Act, was incorporated into S. 401. As a result, the bill included a "Skilling-fix" to the honest services fraud statute (18 U.S.C. § 1346) like that found in H.R. 1468, the Honest Services Restoration Act, also introduced in the 112th Congress.

In addition to expanding several public corruption offenses and reacting to the Skilling decision, the bill also would amend the statute of limitations, venue, and penalties for several public corruption offenses. Various iterations of this bill have been introduced in prior years, including in the 111th Congress as S. 49, H.R. 2822, S. 3854, and H.R. 6391.

Why These Bills Matter

Clean Up Government Act

The Clean Up Government Act exemplifies the problems of overcriminalization, in particular because it injects ambiguity into offenses by expand the scope and broadens definitions of key terms. For example, this bill would:

Broaden the scope of the federal mail and wire fraud statutes (18 U.S.C. §§ 1341 and 1343) to cover “money, property, or anything of value” (i.e. expansion to licenses, permits and other intangible items) and clarify that the theft and bribery provisions of 18 U.S.C. § 666(c) also apply to the same;

Broaden the definition of an “official act” under the illegal gratuities portion of the bribery statute (18 U.S.C. § 201(c)(1)) and modify its language to prohibit gratuities given because of an “official’s or person’s official position or any official act” and not solely because of “any official act;" and

Decrease the protection of the "de minimus" threshold for federal embezzlement offenses by lowering it from $5,000 to $1,000.

The Clean Up Government Act would also increase criminal penalties for certain public corruption offenses, including ten-fold increases in some instances; broaden the scope of the federal venue provision to allow for proper venue in "any district in which an act in furtherance of an offense is committed" and specifically wide venue provisions for perjury and obstruction of justice prosecutions; extend the statute of limitations for public corruption offenses; and make additional offenses predicates for RICO violations.

Senate Public Corruption Amendment 1483 to the STOCK Act

For the same reasons as H.R. 2572, Senate Public Corruption Amendment 1483 to the STOCK Act exemplifies overcriminalization.

Public Corruption Prosecution Improvements Act of 2011

This Act would make a significant number of changes to several public corruption offenses and also legislatively reverse the Supreme Court's decision in U.S. v. Skilling, which limited the honest services fraud statute (18 U.S.C. § 1346). Some of the changes S. 401 would make include:

Extending the statute of limitations to six years for certain “serious public corruption offenses”;

Modifying the federal mail and wire fraud statutes to apply to
schemes to obtain “any other thing of value” in addition to the current
law’s “money or property”;

Amending 18 U.S.C. § 666(a) to lower the applicable monetary
threshold from its current $5000 level to a $1000 level and increase the
applicable criminal penalty from up to 10 years imprisonment to up to
15 years imprisonment;

Increasing the maximum penalty for violations of 18 U.S.C. §
641 from a maximum of 10 years imprisonment to a maximum of 15 years
imprisonment;

Increasing the maximum penalty for violations of 18 U.S.C.
201(b) from a maximum of 15 years imprisonment to a maximum of 20 years
imprisonment;

Adding bribery, theft, and embezzlement of public funds to the predicates for RICO;

Adding additional wiretap predicates to 18 U.S.C. § 2516(1)(c);

Clarifying the language of the federal illegal gratuities statute (18 U.S.C. 201(a)); and

Expanding venue for perjury and obstruction of justice proceedings.

In addition, the bill would expand the honest services fraud statute to conduct that the Supreme Court rejected - undisclosed self-dealing or conflicts of interest by public officials or any officer or director of any publicly-traded corporation or private charity. The bill fails to define the criminal intent requirement and sets forth expansive definitions of the key offense terns, In essence, this bill would do precisely what the Supreme Court warned against.

NACDL’s Position on Public Corruption Focused Legislation

NACDL Opposes the Clean Up Government Act

The Clean Up Government Act is dangerously vague and, if enacted, puts innocent people at risk of criminal prosecution. The Act expands a variety of criminal offenses and injects additional vagueness into the criminal code. These proposed changes raise serious overbeadth concerns and are unnecessary in light of the over 20 federal statutes already available to address public corruption at all levels. This Act is extremely troubling and NACDL opposes its enactment.

In addition to publishing a critical analysis of each bill, NACDL actively worked against the Act. At a House Judiciary Committee hearing
on H.R. 2572, NACDL Member Timothy P. O'Toole testified on behalf of
NACDL about the serious flaws present in the bills. NACDL submitted a
letter to House Judiciary Committee prior to its markup of H.R. 2572.

NACDL Opposes the Public Corruption Amendment 1483 to the STOCK Act

NACDL opposes Senate Public Corruption Amendment 1483
to the STOCK Act and warned Senators of the dangerous nature of this amendment prior
to its introduction and again on February 1, 2012, prior to a vote on
the measure. Read the letters here.

NACDL Opposes the Public Corruption Prosecution Improvements Act

NACDL believes the provisions of this Act are redundant, unnecessary, and reflect the disturbing trend of overcriminalization. Public corruption is an insidious crime that undermines the public's faith in those who trusted to serve the people. The federal criminal code, however, already has a very powerful set of laws to prevent and punish those public officials who trade on their public office for private gain. There are over 20 federal statutes already available to address public corruption. This Act contains a number of unnecessary changes to the law that will create additional confusion, cost, and unintended consequences, while at the same time having no appreciable effect on curtailing public corruption.

NACDL submitted a letter opposing S. 401 to the Senate Judiciary Committee. During the 111th Congress, the Senate Judiciary Committee held a hearing on post-Skilling honest services fraud and NACDL Member Timothy P. O'Toole testified against any additional legislation in this area. NACDL also submitted a letter opposing S. 49 to the Senate Judiciary Committee during the 111th Congress.

Status on These Bills

Clean Up Government Act

During the 112th Congress, the House Judiciary Committee held a hearing
on H.R. 2572. Following the hearing, the committee marked up the bill
and reported it out of committee. The bill was never scheduled for a
full chamber vote and did no further action was taken on it. This
legislation was not re-introduced in the 113th Congress.

The Senate Public Corruption Amendment to the STOCK Act

S.AMDT. 1483 was ultimately added to the Senate version of the STOCK
Act but House leadership removed it from the version of the STOCK Act
the House passed on February 9, 2012. Read NACDL's Press Release on
that vote here. As a result, the final version of the STOCK Act signed by President Obama did not include this draconian amendment. Read NACDL's press release on the House action here.

Public Corruption Prosecution Improvements Act

The Senate Judiciary Committee held hearings on the various iterations of this Act. During both the 112th and the 111th Congress, the Committee has marked up and reported out the Act, but it has never advanced to the full Senate vote.

How to Get Involved

Please use NACDL’s Contact Congress function to call or e-mail your U.S. Representative or Senator to encourage them to re-introduce, co-sponsor, or generally support similar legislation in the 113th Congress.